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Updates to Delaware Discovery Rules, by Laura Bower Braunsberg

Updates to Delaware Discovery Rules

by Laura Bower Braunsberg

The Delaware Court of Chancery recently amended rules 26, 34 and 37 of its procedural rules to conform more closely to their federal counterparts.  Rule 26 was amended “to expressly incorporate proportionality considerations consistent with the Federal Rules.”  In particular, rule 26(c)(2) has been amended “to reference cost allocation as a means to address discovery burdens.”  The rewritten rule encompasses the idea that “the burden or expense” of a discovery request can “outweigh its likely benefit.” 

This language replaces language from the prior rule that said discovery can be limited if it is “unduly burdensome.”  Instead, the new rule takes a more direct approach, affirmatively asserting that discovery must be proportional with the expected benefits of discovery outweighing their cost.

In addition, the Court of Chancery has previously instructed parties to avoid lengthy general objections in responding to interrogatories and requests for production.  The amendment to rule 34(b) codifies this instruction.  When objecting, a party must state their grounds “with specificity” and further state whether the party “will withhold any responsive material on the basis of an objection.” 

The Delaware Court of Chancery is a court of limited jurisdiction and hears only cases sounding in equity and those corporate cases assigned to it by statute.  Most of Rawle & Henderson’s commercial and tort litigation is before the Delaware Superior Court which has not adopted the same rules with regards to streamlining discovery.  Recently, however, a number of Superior Court judges have remarked during CLE panels that they do not like the practice of answering discovery with lengthy “general” objections that do not specify whether materials have been withheld and, moreover, do not find them effective in preserving objections.  Some of our attorneys have already begun to phase out such objections in response.

We will continue to monitor updates from all of the Delaware courts as well as comments from its judges regarding the burdens and expenses imposed by excessive discovery requests and objections.  We are hopeful that the Superior Court will join its sister court in codifying the proportionality requirements for discovery to reduce discovery burdens and expenses for our clients. 

The Chancery Court Rules become effective July 1, 2019.  The announcement and order can be found here.

Laura Bower Braunsberg is an associate in the Wilmington, Delaware office of Rawle & Henderson LLP. She concentrates her practice on commercial litigation, property damage, personal injury, commercial motor vehicle matters, and casualty and premises liability.

She earned her J.D., cum laude, from the University of Virginia School of Law in 2010.  While attending law school, Laura served as an Editor for the Virginia Law Review and as President of the National Trial Advocacy Team.  She earned her B.A., magna cum laude, in Philosophy, Japanese, and East Asian Studies from Macalester College in 2006.

Laura serves on the American Mock Trial Association Board of Directors and is the Head Coach for the University of Delaware Mock Trial team. She represents victims of domestic violence through Delaware Volunteer Legal Services and children in foster care through the Office of the Child Advocate. She is the BARBRI Evidence lecturer for the Delaware Bar Exam. She taught the Delaware Evidence lecture for BARBRI at the Widener University Delaware Law School in June 2019.

Laura is admitted to practice in Delaware, as well as the U.S. District Court for the District of Delaware and the U.S. Court of Appeals for the Third Circuit.

Laura can be reached directly at (302) 657-2134 • lbraunsberg@rawle.com